RE GEOFFREY DUDLEY LAWRENCE; EX PARTE WESTPORK PTY LTD [2012] WASC 487 (11 December 2012) - WASC 2012 case summary — Zoe

WAWASC

RE GEOFFREY DUDLEY LAWRENCE; EX PARTE WESTPORK PTY LTD [2012] WASC 487 (11 December 2012)

[2012] WASC 487

Supreme Court of WA|2012-12-11|Before: Heenan J

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At a glance

Source facts

Court

Supreme Court of WA

Decision date

2012-12-11

Before

Heenan J

Source

Original judgment source is linked above.

Judgment (61 paragraphs)

[1]

1 EM HEENAN J: The single issue arising from these two orders to review decisions of the Magistrates Court is whether the 'institution' of a prosecution by filing a photocopy of the relevant prosecution notice, rather than the original prosecution notice, is a valid commencement of a prosecution in the Magistrates Court and effective to invoke the jurisdiction of that court to determine the charge notwithstanding that s 24(2) of the Criminal Procedure Act 2004 (WA) requires a prosecution notice to be lodged in the court in which the prosecution notice is being commenced and that it be lodged in the manner prescribed by the rules of court, and that rule 45(1) of the Magistrates Court (General) Rules 2005 (WA) states that 'a prosecution notice must be lodged by handing the original notice to the court'.

[2]

2 For some reason or in some manner which remains unknown the two prosecution notices which are the subject of these two sets of proceedings were somehow unwittingly lost or destroyed before being lodged in the Magistrates Court at the commencement of these prosecutions. There is no doubt or dispute that original prosecution notices were prepared and executed in a valid form by the respective prosecutors but, as already stated, it has been concluded that they were lost or destroyed before they could be filed. However, photocopies of the prosecution notices were available and one authentic photocopy of each was filed in the Magistrates Court to commence these respective prosecutions. The defendants to each of the charges then lodged applications to the magistrate to stay the charges against them on the ground that the original prosecution notices had not been lodged and that, accordingly, the proceedings had not been validly instituted and that a Magistrates Court did not have jurisdiction to proceed.

[31]

All charges against all accused in this matter were commenced in time; the provisions of the CPA were complied with; an authorised officer and a JP signed them on dates prior to the limitation period expiring. Lodgement did not determine whether the prosecutions were commenced within time, the signing and in particular the date of that signing, did.

The originals are lost; that they previously existed is I find certain. The copies bear this out. On their face and without doubt they constituted the commencement of proceedings. A copy was retained on the State Solicitor's Office file and was eventually provided to the Registry lodged in place of the missing original. It is a copy of a prosecution notice duly commenced in time. It is the best evidence available in the circumstances. The circumstances were that in the course of the daily work of a large litigation office such as the State Solicitor's Office or in the daily work of a court Registry especially one as large as the Perth Registry, through innocent administrative oversight (and certainly it is difficult to imagine and neither party suggests that there has been any mal[a] fides in the disappearance of the original prosecution notice) a document might be overlooked, lost or not delivered.

Whilst it is important to guard against such occurrences it is surely part of the human condition that an item might be misplaced, misfiled or the like only to come to light later.

Mr Quinlan SC on behalf of Westpork Pty Ltd has asked me to consider the use of the phrase 'prosecution notice' in the CPA. He points to the mandatory nature of recording the court result on the prosecution notice. He I find rightly concedes that this is not the strongest of arguments. The CPA does not provide that a failure to do so will in any way vitiate a finding of guilt or innocence. It is a provision to ensure a record is kept on a prosecution notice. In circumstances like those that have arisen here that, from time to time but hopefully rarely, there will be a copy of an original notice that properly commenced proceedings which can be endorsed.

I do not accept that as a matter of statutory interpretation the provisions of the CPA can be so narrowly interpreted that in circumstances as they have arisen in this case a copy of that prosecution notice signed on that date, within a limitation period, cannot properly ground the proceedings that were commenced on that date within the limitation period and in accordance with the CPA.

This application is dismissed. The proceedings on all charges including those that have been in issue on this application will remain.

[40]

24 Palos Verdes Estates Pty Ltd v Carbon concerned a prosecution which under s 114 of the Environmental Protection Act 1986 (WA) which required the consent of the responsible Minister. Attempts made by the prosecution to prove the grant of consent by that Minister, when it was put in issue by the defendant, were unsuccessful and the ensuing conviction was quashed on appeal to the Full Court on the basis that the Minister's consent was essential to the validity of the proceedings. This case is, therefore, distinguishable from the present because here there is no suggestion of noncompliance with any antecedent condition for the valid commencement of the prosecution; rather, the present question is whether or not a prosecution regularly commenced enlivened the jurisdiction of the Magistrates Court when a copy, rather than the original, of the prosecution notice, was filed in the court registry. In About Holdings Pty Ltd v Bellbird Enterprises Pty Ltd Parker J held that the institution of an originating summons in this court had been done in contravention of a statutory bar contained in s 27(1) of the Commercial Tenancy (Retail Shops) Agreement Act 1985 which prohibited the institution or commencement of proceedings in a court when the instituting party had previously instituted proceedings by way of a reference to the Registrar of the Commercial Tribunal because such a previous institution was an election between two available remedies which, once made, rendered the other unavailable. At 313 his Honour reviewed a series of English decisions (all of which predated Project Blue Sky), which discussed how certain proceedings commenced in contravention of various statutory provisions were, or in certain circumstances could be regarded as, a nullity. Whether that approach to the validity of proceedings commenced in this court is still available in the light of the decision in Project Blue Sky is a matter which need not be closely examined; the result in that case may well have been the same if the objecting party had applied for a permanent stay of the originating summons on the grounds that it had been commenced in contravention of another statutory prohibition, a procedure which would almost certainly have led to the same result without the need to agitate the notoriously difficult and variable concepts associated with the term 'nullity'. Again About Holdings Pty Ltd v Bellbird Enterprises Pty Ltd is plainly distinguishable from the present situation.